The Law of Life and Death

Are you alive? What makes you so sure?

These strange questions open a new book by FIU College of Law professor Elizabeth Price Foley. The Law of Life and Death, published by Harvard University Press, uses stories of real people to examine the laws that govern such complex, provocative issues as abortion, in-vitro fertilization, life support, cryogenics and physician-assisted suicide.

What motivated you to write this book?

My father died in the summer of 2004. His death wasn’t a “good” death, and it raised a lot of issues in my mind about the meaning of life and death. Beyond the basic philosophical questions, I became intrigued – as a lawyer – with the specific question of how the law defines life and death, and how those definitions relate (or don’t relate) to each other.

Life and death would seem to be the most straightforward of antonyms. Why the ambiguity?

The two concepts don’t relate to each other at all, legally speaking. The law has a pretty well defined definition of death, but no definition at all of life. I think this is due to the fact that defining life is laden with moral judgments and has implications for controversial issues such as abortion.

Everyone will die, and this necessitates a relatively clear and stable legal definition of death so that wills can be probated, insurance proceeds can be distributed and crimes can be prosecuted. The law simply cannot afford to equivocate on the definition of death.

What do U.S. laws reveal about our relationship to death and dying?

Something I find fascinating and relatively unexpected: That the law of life and death is much more fluid and multifaceted than one might expect. While this may seem initially disturbing, I became convinced while writing the book that this was a good thing because it allows the law to accommodate a diverse array of viewpoints on issues that are intensely personal and vary wildly by things such as religion and culture.

Do you think Dr. Jack Kevorkian’s crusade for physician-assisted suicide had an impact?

Certainly. Dr. Kevorkian brought the issue of physician-assisted suicide to the forefront of the American public’s mind. His methods were crude and often offensive, but he forced American society to debate the desirability of physician-assisted suicide and shed light on longstanding practices that were occurring regularly, albeit behind the scenes. His crusade was undoubtedly a big impetus behind passage of laws in Oregon and Washington that have legalized physician-assisted suicide. But it was also a backstory in the Supreme Court’s decisions in 1997 denying recognition of a constitutional right to physician-assisted suicide.

You write about heads cryogenically preserved in the hope that they may one day be reattached to a clone or robotic body. What issues would society face?

If the essence of our “personhood” is defined by a functioning brain, then the successful unfreezing of a cryogenically preserved head (or just brain) would imply that the person previously declared legally dead is no longer so. How the law would be able to accommodate such a resurrection is an open question.

What are the implications of the case of Zach Dunlap?

The 21-year-old suffered a traumatic brain injury in 2008. He was declared brain dead in the hospital, and doctors began preparing to harvest his organs. Zach heard all of it because he was conscious but unable to speak. Fortunately for Zach, two of his cousins, both nurses, were in the room and able to demonstrate that he was responding to pain. The preparations for harvesting were stopped. Forty-eight days later, Zach went home, substantially recovered.

As the book shows, Zach’s story isn’t isolated. Misdiagnoses of brain death are more common than the medical profession admits. Although still relatively rare, they do occur, and the potential consequences are obviously devastating. The pressure to obtain harvestable organs reinforces the impression that an abundance of caution is warranted in making these diagnoses.

In your book, doctors don’t come across as the best advocates for people facing life and death questions. Who, then, is?

The patients and the patients’ loved ones are the best advocates, by far. They are in the best position to be objective and have appropriate knowledge about the patient’s values and preferences.

I’m a huge advocate of advance directives such as living wills and durable healthcare powers of attorney, but they must be drafted with the goal of effectuating the patient’s own wishes – and without any pressure whatsoever.

Why devote the end of your book to scientific research and treatment?

Because the research and treatment of severe neurological disabilities – such as the persistent vegetative state, the locked-in syndrome and the newly discovered minimally conscious state – reveal that our understanding of the brain is, currently, rudimentary at best.

Because the legal definition of death has been expanded in the last 50 years to include brain death, it’s critically important that we understand what brain death is and what it isn’t. As it’s turning out, there are many more people with some awareness of their surroundings than previously understood. In my mind, this urges great caution in considering proposals to expand the definition of brain death.

Given all of this, is there an essential question we should ask ourselves when considering an advance directive?

Boy, that’s a tough question. Death is such a personal moment. I think the most important thing for anyone to think about is this: Would you rather be extremely disabled and alive, or dead? It’s actually a much harder question to answer than you might think, particularly if (like me), you are aware of data showing that extremely disabled individuals…actually self-report a relatively high quality of life.

An extended version of this interview appeared originally in the Winter 2011-12 issue of FIU Magazine.

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